Monday, January 27, 2014

But Then We'd Have To Kill You

It seems like every time they kill someone lately, it's a first. Ever since supplies of thiopental started running out and Hospira got out of the business, it's been a struggle.

There were the states like Georgia that imported it illegally only to have DEA seize the supply. There was the stuff coming in from Dream Pharma located in the back of the Elgone Driving Academy in London. And the three-drug sequence itself was problematic.

Ohio led the way to a new system with a single massive dose of pentobarbital. But Lundebck, the Danish manufacturer, didn't like that. Missouri announced it would go with propofol, which successfully (if unintentionally) killed Michael Jackson. But ooops. Turns out that surgeons actually need the stuff for, you know, saving lives. But that comes from Europe, too. And it looked like if we started using it to kill they'd stop shipping it to the U.S. altogether.

Florida started off the new year with a single dose of Midazolam. Ohio followed with an experimental combination of Midazolam and hydromorphone. Ooops. Ugly. Maybe torture. They were warned. Lawsuit.*

Other states, Texas naturally leading the way, are getting their drugs from compounding pharmacies which aren't particularly well-regulated and, well, who knows about quality. But really, the idea is to get the person dead, and they seem to be achieving that. (Well, except for Ohio and Rommell Broom, but that was back in the days when we actually had thiopental and anyhow Ohio has shown itself singularly incompetent at the business of killing its people - though there was that Kent State thing back in 1970.)

But gee, what's a poor state to do? I mean, we have to kill these guys or the republic will crumble. Why don't they just understand that and go along with it. Instead they keep throwing up roadblocks. Hell, every time we cook up some new idea the guys who are about to be killed go and file a lawsuit. And they want details. Who? What? Where? How? But see, we told them about thiopental and they went and got Hospira all huffy. And then we said pentobarbital, and look what happened with Lundebeck.

Fuck even down in Texas they had trouble when word got out about which compounding pharmacy was doing the compounding. It recalled the damn drugs. I mean, they were willing to aid and abet the killing, but only as they didn't get caught.

So Missouri, well, they're after keeping it all a secret. Because, well, they said that it was a state secret - you know, like the shit Snowden revealed. Well, no. It's not that. So maybe it's that everything and everyone is just secret. Because if, say, the poor schmuck knew what doctor wrote the prescription for the drugs to kill him, and knew what pharmacy was doing the compounding, and what lab was actually testing the compounds to see if they were proper, well then, he might have the information he needs to tell the court that Missouri is planning to torture him to death. (Or, of course, he might learn that he's going to get the best lethal injection anyone's ever had - though you'd think that if that's what he'd learn the Show Me State would be all about showing him.)

Anyway, the guys on the row filed suit in federal court and asked for the info and the state refused but the district court judge said to turn it over. So the state brought this mandamus action to keep things secret. And a three judge panel of the 8th Circuit said they could keep the name of the MD who prescribed the drugs secret, but they had to turn over the info about the pharmacy and the lab. Which would, once again, end the republic. Or at least end the prospect of executing anyone, which is about the same thing. So the whole 8th Circuit took it up.

And, you know, secrets.

In addition to these arguments on the merits, the Director asserts that no other
adequate means is available to attain the requested relief. He argues that if discovery
proceeds and an appeal is allowed only after judgment, then it is likely that active
investigation of the physician, pharmacy, and laboratory will lead to further
disclosure of the identities. These disclosures, he contends, would trigger collateral
consequences that would prevent the Director from obtaining the lethal chemicals
necessary to carry out the capital punishment laws of the State. He cites, as an
example, a letter dated October 2013 from a compounding pharmacy in Texas that
demanded the Texas Department of Criminal Justice return a supply of compounded
pentobarbital sold for use in executions, because of a “firestorm,” including “constant
inquiries from the press, the hate mail and messages,” that resulted from publication
of the pharmacy’s identity. R. Doc. 189-1, at 6-7. See Landrigan v. Brewer, 625 F.3d
1132, 1143 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en
banc) (“Certainly Arizona has a legitimate interest in avoiding a public attack on its
private drug manufacturing sources . . . .”).

And so the court said it's all secret and can't be revealed and don't go there. And the state said

Whew.

And wiped it's brow. Forgetting about Edward Snowden - which in this case is Chris McDaniel of St. Louis Public Radio. Because shit gets out. (Which, as a complete aside, is why I don't believe the grand conspiracy theories about the Kennedy assassination. I mean, the Warren Commission report always seemed to me to smell of cover up, the desperate need to declare that Oswald acted alone which struck me then and still does as far fetched. But all the grand conspiracy theories collapse under their own weight on my inability to believe that so many people - and we're talking about an enormous number - would have managed to keep it a secret all these years.)

And so we pretty much know that the drugs came from the Apothecary Shop in Oklahoma. And as McDaniel tells us,

The quality of compounded drugs, unlike manufactured drugs, varies from batch to batch. Inspections by the Missouri Board of Pharmacy have found that about one out of every five drugs made by compounding pharmacies fails to meet standards. Lawyers representing death row inmates argue that the identity is important, so they can find out if the pharmacy has been cited for shoddy practices or is even properly licensed.The state has offered reassurances that the drug is pure and potent by having a testing lab examine it. However, the testing lab is a controversial one. Analytical Research Laboratories (ARL), in Oklahoma City, OK, approved a batch of steroids for commercial use that ended up killing dozens in 2012. The deaths sparked debate over the regulatory practices for compounding pharmacies, which aren't regulated by the Food and Drug Administration like drug manufacturers are.The inmate's pharmacy expert also points out the lab report found an unknown substance in the drug, but the lab still approved it.

Which probably isn't making Herbert Smulls feel confident as he prepares for the people of the state of Missouri to kill him Wednesday.

*I'm not putting in links to this background stuff except for the lawsuit, filed Friday, and the link is to the Columbus-Dispatch-posted pre-filing version of the complaint, which I assume is the same as the actual filed version. I've written about most of this. It's been in all the news. You can look it up.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.